What is Guardianship?

April 9, 2010

Guardianship involves a situation where a court appoints one person (the Guardian) to make decisions regarding personal and financial matters of another individual (the ward). In New York, a Guardian may be appointed under Article 81 of the New York Mental Hygiene Law by a Supreme Court judge or Article 17A of the Wills, Trusts & Estate Law by a Surrogate Court Judge.

Guardianship proceedings should be brought when there is an individual whose judgment or capacity is impaired or there is a major threat to an individual’s health and welfare. A physician should be consulted to render a medical evaluation of the capabilities of the individual who you seek a Guardianship for.

A Guardian can have two types of authority in the State of New York. He or she can have authority over the person, of the ward. The Guardian can also have authority over the property of ward or both the person and property of the ward.

If a Guardian is appointed to deal with the person of the ward, he or she is responsible for medical treatment. A Guardian appointed to handle the personal finances of the ward must account for of the ward’s income, assets and expenditures to the court that appointed him or her.

For help on guardianships for children under 18 or elderly individuals, you can always e-mail or call our office at 800-344-6431.

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It is becoming more common in the settlement of large personal injury cases for the settlement to “be structured”. A structured settlement establishes a program whereby the injured person receives a regular predictable series of payments over a period of years instead of a lump sum payment.

These payments can be set up in a manner as to compensate the injury victim over the course of his or her life. Under certain circumstances, the payments from a structured settlement can be paid as an annuity which is placed into a Supplemental Needs Trust. This allows the injured individual to qualify for public benefits such as Medicaid.

For help with a personal injury case if you have been injured you can always  e-mail us or call 800-344-6431.

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It is impossible to predict whether a family member will require long term nursing home care but one thing is certain. Medicare will not pay the cost of long term nursing home care.

Alternative methods of paying for nursing home care may involve long term care insurance, paying out of your pocket, or qualifying for Medicaid.

In the event you seek to purchase long term care insurance, it is important you get the following benefits:

1. Home care coverage.

2. An inflation rider.

3. Make sure to obtain at least 3 years of coverage.

If you seek to qualify for Medicaid, you should take the following into consideration:

1. You can only have about $2,000 in assets.

2. Your home doesn’t count in qualifying for Medicaid but Medicaid can place a lien on your home to cover its expenses.

3. If you have a spouse, he or she is entitled to retain up to about $95,000 in assets.

4. The individual in the nursing home has to give up all income except for $60 per month for a personal allowance, the cost of health insurance premiums and an allowance for minor children or his or her spouse. 

5. Under certain circumstances the stay at home spouse is entitled to a share of the nursing home spouse’s income.

6. The state can go after the Medicaid recipients estate upon his or her death.

7. The Medicaid application process is difficult, complicated and time consuming.

In the event that you need assistance with Medicaid planning to help preserve your assets in the event of a future Medicaid application or with an actual Medicaid application, you can e-mail us or call at 800-344-6431